a) Hungary / b) Constitutional Court / c) / d) 29-04-1997 / e) 29/1997 / f) / g) Magyar Közlöny (Official Gazette), 37/1997 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Constitutional jurisdiction - Relations with other institutions - Legislative bodies.
Constitutional Justice - Types of claim - Claim by a public body - Legislative bodies.
Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.
Constitutional Justice - Jurisdiction - Advisory powers.
Constitutional Justice - Jurisdiction - The subject of review - Laws and other rules having the force of law.
General Principles - Separation of powers.
Institutions - Legislative bodies - Law-making procedure.
Institutions - Legislative bodies - Law-making procedure - Majority required.
Institutions - Legislative bodies - Relations with judicial bodies.
Keywords of the alphabetical index:
Bill, preliminary review, limits / Preliminary review, procedure.
According to the Standing Orders of Parliament and their interpretation, persons entitled by Article 21.1 of the Act on the Constitutional Court could initiate preliminary review of a bill which had not yet been decided on by the Parliament, without any further condition or agreement.
An Act which is decided on by Parliament without allowing the persons entitled to initiate preliminary review of the bill is unconstitutional and invalid.
The Constitutional Court declared that Parliament created an unconstitutional situation with respect to its own Standing Orders by failing to guarantee the practice of the right to initiate preliminary review of laws before their enactment.
During the ongoing discussion on the draft of the Bill on Incompatibility of Parliamentary Representatives, fifty-two Members of Parliament proposed that the Constitutional Court review the constitutionality of some provisions of the bill. At the same time the petitioners asked the Parliament to postpone the final voting on the contested bill. The Parliament, referring to its Standing Orders, decided in favour of the final voting. The petitioners submitted that it was unconstitutional as, according to the Standing Orders of Parliament, it is possible to postpone the final vote on the bill by a four-fifths majority of the Members of Parliament. This thus makes it impossible for fifty parliamentary representatives to practise their right to initiate preliminary review of the bill before the Constitutional Court.
The reasoning of the Court recalled a previous decision. In 16 December 1991 (IV. 20) the Constitutional Court presented its opinion on the Courtís jurisdiction concerning preliminary review. The Court pointed out that it may make sense to review the constitutionality of a bill which is already disputed during the legislative procedure because preventive norm control may prevent the annulment of an already-promulgated legal rule which has come into force. However, the Hungarian regulation does not restrict the Courtís jurisdiction to the final text of the bill, but makes review possible at any stage of the legislative process. The Court declared that examining the constitutionality of some provisions of a bill, the text of which is not definitive, could possibly mean involving the Constitutional Court in the everyday legislative process. The Constitutional Court is not an advisory organ of Parliament. Its task is to judge the result of the legislative work. Therefore, the current regulation of the preventive norm control of bills is incompatible with the principle of separation of powers.
According to Article 33.1 of the Act on the Constitutional Court, upon the motion of fifty Members of Parliament the Constitutional Court shall examine the constitutionality of any contested provision of a bill. In the meantime, Parliament must not vote on the final text of the law. The postponement of the final voting on the contested bill is a constitutional obligation, since this is the only way for the fifty parliamentary representatives to practise their right to initiate preliminary review. Since the decision of the Constitutional Court is binding on everyone, the law enacted by Parliament regardless of this constitutional requirement is void and unconstitutional.
The Constitutional Court declared that Parliament created an unconstitutional situation with respect to the Standing Orders of Parliament by failing to guarantee the possibility for the fifty Members of Parliament to practise the right to initiate preliminary review of laws before their enactment. The Court, therefore, called upon Parliament to meet its legislative obligation by 15 June 1997.